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The electoral count of 1877 — Senator Morton's scheme — Tilden's history of the presidential counts — President Grant concedes Tilden's election - Electoral commission created Disapproved of by Tilden

· Refuses to raffle for the presidency - Horatio Seymour's speech before the New York electors Dr. Franklin's advice to his son - The Florida

- The Louisiana case - The Oregon case Conflicting decisions of the commission — The commission for sale - The forged certificates from Louisiana – Decision of the commission condemned by the House of Representatives — Letter of Charles Francis Adams — The Fraud Blazon Tilden's reply – Protest of the Democratic minority of the electoral commission — Thurman and Bayard — James Russell Lowell.


At the meeting of Congress in December the absorbing question was the counting of the electoral vote. It had been usual for Congress to define in advance the manner in which this duty should be discharged. In the session of 1864–5 Congress provided that no electoral vote objected to by either House of Congress should be counted except by the concurrent votes of both Houses. This became notorious as "the 22d rule.” It was re-adopted at the three successive electoral counts of 1865, 1869, and 1873. This rule, after having been in force for three successive elections, was abandoned by a resolution of the Senate in December, 1875, on motion of Senator Edmunds, at whose instance the Senate adopted "the rules of that body and the joint rules of the two Houses except the 22d joint rule heretofore in use.” The House of Representatives was at this time largely Democratic, and, had the 22d joint rule continued in force, any electoral votes which it refused to count would have been rejected. The rule, which was of doubtful constitutionality, had been originally adopted, and subsequently renewed, for partisan ends; for partisan ends it was now dispensed with by the Senate,


thus leaving the two Houses without any rule to govern them for counting the electoral votes in February, 1877.

Prior to 1865, and before the adoption of the 22d joint rule above referred to, it had been the practice of the two Houses of Congress, a little in advance of the day fixed by the Act of 1792 for counting the votes, — the second Wednesday of February, — to agree upon the place of meeting for the discharge of this duty and the order of proced

Various efforts had been made from time to time, by one House or the other, previous to the adoption of the 22d rule, to appropriate to itself the power to determine the validity of electoral votes; but all had, for one reason 'or another, proved abortive. The 22d joint rule, adopted by the Republicans in 1865, assumed for the first time the right to reject electoral votes, as the prerogative of either House.

When the certificates of the electors of the several States came to be opened at Washington in 1877, it appeared that the certificates of thirty-four States were uncontested, but that the remaining four were to be contested. These were the certificates from the States of South Carolina, Florida, Louisiana, and Oregon. The electoral vote of the uncontested States was so distributed that the fate of the presidential candidates depended upon the electoral vote of the four contested States.

Congress having failed to make any provision beforehand, the mode of procedure in counting the electoral vote was the first question to be dealt with.

The Republicans had the control of the Senate, the Democrats, of the House. The Constitution provided that " the President of the Senate shall, in the presence of the Senate and the House of Representatives, open all the certificates, and the votes shall then be counted.” Senator Morton took the ground that the President of the Senate should be invested with plenary authority " to determine all disputes relative to certificates of the electoral votes; to

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count them and to declare the result, which declaration was to be accepted as final, conclusive, and irrevocable.” The President of the Senate at that time, Thomas W. Ferry, of Michigan, owed that position to his party subserviency rather than to his fame as a statesman. The adoption of such a rule would have been equivalent to pronouncing Hayes President and making the counting of the electoral vote an idle ceremony. To make it such was obviously the motive of those who advocated it.

The Constitution assigned to the President of the Senate no other specific duty but to open the certificates. Beyond that he was but one of three coördinate bodies authorized to count the votes, settle controversies, and declare the result, as had been virtually the unbroken practice from the foundation of the government. A year had not elapsed since the same Senator Morton had introduced an electoralcount bill which required that the affirmative action of both Houses of Congress should be required to reject any certificate of electoral votes, and if more than one return was made, only that one should " be counted, which the two Houses, acting separately, shall decide to be the true and valid return.” Nothing had occurred to the Constitution which in the spring of 1876 required the concurrence of the two Houses, acting separately, to count an electoral vote, the President of the Senate to the contrary notwithstanding, that in the winter of the same year could transfer this power to the President of the Senate, the two Houses of Congress to the contrary notwithstanding. That is, nothing but a presidential election which begat the temptation to strike the House of Representatives with impotence for the purpose of ensuring the success of the Republican candidates. The inconsistency of these positions, and the absurdity of attempting to reconcile the Constitution with two modes of procedure so diametrically opposed to each other, did not prevent Morton's scheme finding favor with his partisans in Congress, who seemed to have reached the conviction that the end of defeating Tilden would sanctify any means necessary to accomplish it, and that the Constitution itself should yield to such an exigency. Such threatening proportions did this scheme assume that Mr. Tilden devoted more than a month to the preparation of a complete history of the electoral counts from the foundation of the government,' to show it to have been the unbroken usage of Congress, not of the President of the Senate, to count the electoral votes.?

What influence, if any, this publication had upon the ultimate abandonment of Senator Morton's scheme it is difficult to say.

Probably not much, for it taught the Senators nothing of which they were ignorant; but about this time the leaders of that body became aware that President Grant did not believe that Hayes was elected, and several prominent Republican members of Congress, among them Senator Conkling, of New York, were under the same impression, and could not be relied upon to assist in upsetting one of the most venerable traditions of the government, nor in becoming accomplices in the fraud to which it was intended to be contributory. President Grant seems at no time to have had


doubt about the electoral vote of Louisiana belonging to Tilden and Hendricks, or of its being so ultimately decided. In some reminiscences of the late George W. Childs, published first in the " Philadelphia Ledger” in 1885, and subsequently in a volume, that gentleman said:

Just before General Grant started on his journey around "The Presidential Counts ; a complete official record of the proceedings at the counting of the electoral votes in all the elections of President and VicePresident of the United States; together with all congressional debates incident thereto or to proposed legislation on that subject; with an analytical introduction. New York, D. Appleton & Co., 1877.

2 The first election of George Washington, in 1789, was only an apparent exception. The election was unanimous, the procedure a formality and without debate or deliberation. See Presidential Counts; also D. D. Fields, 6. The Electoral Vote of '76," p. 5.

the world, he was spending some days with me, and at dinner with Mr. A. J. Drexel, Col. A. K. McClure, and myself, General Grant reviewed the contest for the creation of the Electoral Commission, and the contest before and in the commission, very fully and with rare candor; and the chief significance of his view was in the fact, as he stated it, that he expected from the beginning, until the final judgment, that the electoral vote of Louisiana would be awarded to Tilden. He spoke of South Carolina and Oregon as justly belonging to Hayes; of Florida, as reasonably doubtful; and of Louisiana, as for Tilden.”

Col. A. K. McClure and the late A. J. Drexel, who were also guests of Mr. Childs on this occasion, have confirmed his report of this conversation.

The plan, therefore, of gagging the House of Representatives in the electoral college received no encouragement from President Grant. Whether he would have ever made any serious opposition to such a consummation, or whether the Senate would have deferred to him if he had, it is now idle to speculate. Another more plausible, if no less un

. constitutional, means of accomplishing the same result was devised for them, the authorship of which has been ascribed to President Grant.

On the 14th of December, 1876, the House of Representatives appointed a committee of seven of its members to act in conjunction with any similar committee of the Senate, "to prepare and report without delay a measure for the removal of differences of opinion as to the proper mode of counting the electoral votes for President and Vice-President of the United States, and of determining questions which might arise as to the legality and validity of the returns of such votes made by the several States, to the end that the votes should be counted and the result declared by a tribunal whose authority none can question and whose decision all will accept."

Four days later, and on the eighteenth of the same month, the Senate created a special committee of seven Senators

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